CLEAN NEIGHBOURHOODS AND ENVIRONMENT ACT 2005

Transcription

1 CLEAN NEIGHBOURHOODS AND ENVIRONMENT ACT 2005 EXPLANATORY NOTES INTRODUCTION 1. These explanatory notes relate to the Clean Neighbourhoods and Environment Act They have been prepared by the Department for Environment, Food and Rural Affairs (Defra) in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given. BACKGROUND AND SUMMARY 3. In 2002 a review of the legislative framework for providing and maintaining a clean and safe local environment was carried out by Defra to accompany the cross-government report Living Places Cleaner, Safer, Greener. The review found that the powers, duties and guidance for dealing with problems associated with local environmental quality were not working as effectively as they should be, and produced options for delivering changes. These options were contained in the consultation paper Living Places Powers, Rights, Responsibilities launched at the Urban Summit on 31 October Some were introduced into legislation in Part 6 of the Anti-social Behaviour Act The majority of the options were developed further and included as proposals for legislative action within the Clean Neighbourhoods consultation launched on 25 July Most of the measures in this Act are based on these proposals, amended as appropriate to take account of comments received during the consultation process. Part 1: Crime and Disorder 5. This Part amends the law relating to crime and disorder reduction partnerships to require them to take into account anti-social and other behaviour adversely affecting the local environment; and makes provision for the gating of minor highways that attract anti-social behaviour. Part 2: Vehicles 6. This Part introduces two new offences relating to nuisance parking and amends the law relating to abandoned and illegally parked vehicles. 1

2 Part 3: Litter and Refuse 7. This Part extends the statutory offence of dropping litter and amends the powers and duties of local authorities in relation to litter. Part 4: Graffiti and Other Defacement 8. This Part amends the law relating to graffiti, fly-posting and the illegal display of advertisements. Part 5: Waste 9. This Part makes miscellaneous provision about waste. Chapter 1 makes provision about the registration of carriers of particular kinds of waste. Chapter 2 makes provision about the illegal deposit of waste ("fly-tipping") and about the powers and duties of local authorities to collect and dispose of waste. Chapter 3 makes provision to deal with waste generated at construction sites. Part 6: Dogs 10. Chapter 1 allows local authorities and parish and community councils to create offences relating to the control of dogs. This power is intended as a more convenient alternative to existing powers to create byelaws. In particular, the new offences do not need to be approved by the Secretary of State. The new system replaces the Dogs (Fouling of Land) Act Chapter 2 relieves the police of most of their statutory responsibilities for stray dogs. Part 7: Noise 12. This Part addresses various issues relating to noise nuisance. Local authorities are given new powers to deal with noise from intruder alarms. The powers for dealing with night time noise nuisance are extended from domestic premises to cover also licensed premises. This Part also allows local authorities to employ alternative means to resolve complaints about noise qualifying as a statutory nuisance prior to issuing an abatement notice. Part 8: Architecture and the Built Environment 13. This Part establishes a statutory body to take the place of a non-departmental public body, the Commission for Architecture and the Built Environment. The provisions create a statutory Commission (with the same name), set out its general functions, transfer the staff and resources of the old Commission to the statutory Commission and dissolve the old Commission. Parts 9 and These Parts contain miscellaneous and supplementary provisions. TERRITORIAL EXTENT 15. The Act extends only to England and Wales. 2

3 TERRITORIAL APPLICATION: WALES 16. Generally, all Parts of the Act apply equally to Wales and England. The two significant exceptions are section 49 (payments for waste recycling and disposal) which is relevant to England only and Part 8 (CABE) which is of primary relevance to England. 17. Where provisions of the Act relating to Wales are commenced by order, it falls to the Assembly to commence them see section 108(1)(b) and (2). THE ACT COMMENTARY ON SECTIONS PART 1: CRIME AND DISORDER Section 1 Crime and disorder reduction strategies 18. Section 6 of the Crime and Disorder Act 1998, as amended by the Police Reform Act 2002, requires "responsible authorities" to formulate and implement "crime reduction strategies". For this purpose, "responsible authorities" are local authorities, chief police officers, police authorities, fire and rescue authorities and primary care trusts (see section 5 of the 1998 Act as amended). 19. In formulating their strategies, the authorities concerned do not necessarily consider low-level anti-social behaviour and environmental crime (such as littering, graffiti, flyposting, nuisance vehicles and fly-tipping) in their strategies. Section 1 amends section 6 so as to require such matters to be taken into account, requiring them to have regard to offences which damage the local environment as part of the continuum from litter, graffiti, fly tipping etc to wider issues of crime and disorder. Section 2 Gating orders 20. Section 2 inserts a new part (Part 8A) in the Highways Act This section provides local authorities with a means to erect, or allow the erection of, a physical barrier to restrict public access to a highway over which the public would normally have a right of passage. 21. In built-up areas there are many minor highways giving rear and side access to properties and providing shortcuts between blocks of properties. They range from narrow footpaths and alleyways to highways capable of accommodating vehicular traffic. Some of these highways provide opportunities to access the rear of properties for illegal entry and concealment and cover for criminal acts and anti-social behaviour. This power will predominantly be used to address crime and anti-social behaviour in built-up areas. 22. Gating, that is, blocking some or all of the access points to the highway using metal gates, may reduce these problems. This section provides a means whereby a local authority may gate a highway, where they would otherwise have a duty both to assert and protect the rights of the public to use the highway and to prevent its obstruction. 23. Section 129A provides for a local authority to make a gating order in respect of a highway that is facilitating high and persistent levels of crime and/or anti-social behaviour that adversely affects local residents or businesses. This section excludes certain types of public highway by definition. 3

4 24. A gating order would restrict the public right of way over the highway and, where necessary, authorise the installation of gates or barriers to enforce the restrictions. 25. Section 129B sets out the extent of the restrictions a gating order may impose on the public right of way over the highway. This includes restricting access for certain periods or times of the day or at all times. Access for occupiers of premises adjoining or adjacent to the highway cannot be restricted, nor can a gating order be made if it forms the only or principal means of access to dwellings. If it forms the only or principal access to premises used for business or recreational purposes, it cannot restrict access during the times of day when these premises are normally used. 26. Certain people may be specified in the order to be exempted from the restriction, such as emergency services and those with a legitimate reason for accessing any premises adjacent to the highway. In practice, this would involve the provision of keys to such people, or the opening of the gates during certain times/periods when such people would expect to use the highway. 27. This power does not permanently extinguish rights of way, making it possible to subsequently revoke the restrictions and reinstate the public s right to use the highway, if appropriate. 28. Section 129C sets out the procedures a local authority must follow in making a gating order. A local authority is required to notify occupiers of properties affected by the order, and others to be specified by regulation, and take their representations into account. They must also hold a public inquiry in any circumstances which might be provided for in regulations. Section 129C also provides for regulations setting out the detailed procedures for public consultation. 29. Section 129D enables a person to challenge the validity of a gating order in the High Court on certain specified grounds. On an application under this section the Court may suspend, quash or allow the gating order to stand. 30. Section 129E requires a gating order to be publicised and made available for public scrutiny. 31. Section 129F sets out the circumstances in which a gating order may be revoked or varied and the procedures for doing so. It also enables regulations relating to revocation or variation to be made. PART 2: VEHICLES Nuisance Parking Section 3 Exposing vehicles for sale on a road 32. Some garages and other businesses which sell cars at times park them for long periods on the road. This can be a nuisance to local residents. Section 3 makes it an offence for a person to park motor vehicles on a road or roads, where the vehicles are parked merely in order to be sold. There must be two or more vehicles within 500 metres of each other for the offence to be committed. 4

5 33. The provision is not aimed at individuals selling cars privately, so a person will not be convicted if he can prove that he was not acting for the purposes of a business (see subsection (2)). Subsection (3) sets out the penalties. 34. A road is as defined in section 142 of the Road Traffic Regulation Act 1984 (c.27) as any length of highway or of any other road to which the public has access. Whether a piece of land is a road or not is a matter of fact. The main feature of a road is that the general public has a right to use it as a means of getting from A to B. The definition includes all highways (all the land to which the public has a right to pass along for the purpose of legitimate travelling and includes both the carriageway and footpath) and also access roads through estates that are owned by organisations such as Housing Associations or by the residents who live there. A car park for example would not normally come within the definition of a road as its function is to enable people to leave their vehicles. 35. Under subsection (4) motor vehicle has the same meaning as in the Refuse Disposal (Amenity) Act 1978 (c.3) which is a mechanically propelled vehicle intended or adapted for use on roads, whether or not it is in a fit state for such use, and includes any trailer intended or adapted for use as an attachment to such a vehicle, any chassis or body, with or without wheels, appearing to have formed part of such a vehicle or trailer and anything attached to such a vehicle or trailer. Section 4 Repairing vehicles on a road 36. This section addresses the nuisance caused by people repairing their vehicles on the street. This can take up valuable parking space for long periods, looks unsightly and can be directly damaging to the local environment (for example where oil is spilled or leaked). Section 4 makes it an offence to carry out "restricted works" to vehicles on a road. 37. There are two exceptions. The first is where a person proves he was not repairing the vehicle in the course of a business (subsection (3)(a)). But this is only available where the works did not give "reasonable cause for annoyance" to persons in the vicinity. So even a person carrying out repairs otherwise than for a business can be convicted if the works gave cause for annoyance. 38. The second exception is where the repairs arose from a breakdown or accident and were carried out promptly or were otherwise authorised (subsection (5)). 39. The definitions of road and vehicle are the same as in the previous section (see paragraph 34 above). Section 6 Power to issue fixed penalty notice 40. Subsection (1) enables any person authorised by a local authority to issue a fixed penalty notice for the offences of exposing vehicles for sale or repairing a vehicle on the road, offering the offender an opportunity to discharge any liability for the offence. Subsection (8) fixes the amount of the penalty at 100 which can be amended by order under subsection (9). Under subsection (10) the local authority to which a fixed penalty is payable may provide for treating it as having been paid if a lesser amount is paid before the end of such (shorter) period as it may specify. Section 7 Fixed penalty notices: power to require name and address 5

6 41. Subsection (1) provides an authorised officer of a local authority with the power to require the name and address of an offender if the officer proposes to give him a penalty notice. Subsection (2) makes it an offence to fail to provide the information asked for or to give inaccurate information. Section 8 Use of fixed penalty receipts 42. Subsections (2) and (3) enable local authorities to use the receipts from fixed penalty notices issued pursuant to section 6 for the purposes of their functions under the Refuse Disposal (Amenity) Act 1978, under sections 99 to 102 of the Road Traffic Regulation Act 1984, functions relating to the enforcement of sections 3 and 4, and for other functions as are specified in regulations. 43. Subsections (4) to (7) make further provisions relating to the spending of fixed penalty receipts. 44. Subsection (8) allows regulations governing the spending by English local authorities of fixed penalties received pursuant to section 6 to be linked to categories of local authority (categorised in an order made pursuant to section 99(4) of the Local Government Act 2003). This is achieved by treating the regulation-making powers in section 8 as though they were included in section 100(2) of the Local Government Act For example, a local authority categorised as excellent might be allowed (by virtue of regulations under subsection (2)(d)) to use its receipts for any of its functions. Abandoned vehicles Section 10 Offence of abandoning a vehicle: fixed penalty notices 45. This section inserts after section 2 of the Refuse Disposal (Amenity) Act 1978 (which makes it an offence to abandon a motor vehicle) three new sections - 2A, 2B and 2C. 46. Section 2A gives an authorised officer of a local authority the power to issue a fixed penalty notice in respect of an offence of abandoning a vehicle, offering the offender the opportunity to discharge any liability for the offence. 47. The sum is set at 200 by subsection (8) which can be amended by order as set out in subsection (9). Under subsection (10) the local authority to which a fixed penalty is payable may provide for treating it as having been paid if a lesser amount is paid before the end of such (shorter) period as it may specify. 48. Section 2B enables an authorised officer of a local authority to require the name and address of the person to whom he proposes to issue a fixed penalty notice. A person commits an offence if he gives false or inaccurate details. 49. Section 2C enables local authorities to use the receipts from these penalties for the purposes of their functions under the Refuse Disposal (Amenity) Act 1978, and sections 99 to 102 of the Road Traffic Regulation Act 1984, functions relating to the enforcement of sections 3 and 4 and for other functions as are specified in regulations (subsections (2) and (3)). Subsections (4) to (7) make further provisions relating to the spending of fixed penalty receipts. 50. Subsection (8) of section 2C makes similar provision as described above for subsection (8) of section 8. 6

7 Section 11 Notice of removal of vehicles 51. This section amends section 3 of the Refuse Disposal (Amenity) Act Previously under section 3(2) of the Refuse Disposal (Amenity) Act 1978, if a vehicle that appeared to be abandoned was found on private land, a notice had to be served on the occupier of the land; if the occupier did not respond, the local authority had to wait 15 days before removing the vehicle. When the vehicle was on a private driveway, there was no practical problem as the occupier was in a position to confirm whether or not it was abandoned. However, if the vehicle was on a private road, it was difficult to identify the occupier; in those circumstances, some form of notice was often left on the vehicle to alert the owner. The notice at times attracted instances of anti-social behaviour such as vandalism and arson. 53. Subsection (2) removes the requirement to serve a notice on the occupier of land where the vehicle is on a road. The definition of road is as described in paragraph 34, and could include roads that pass through housing estates managed by registered social landlords and other local authority housing estates. This enables vehicles to be removed immediately from any road to which the public has access. 54. Section 3(5) of the Refuse Disposal (Amenity) Act 1978 required a local authority to affix a notice to a vehicle 24 hours prior to removal where it was considered to be in such a condition that it ought to be destroyed. There was no definition of what this meant but it could have included vehicles that had parts missing or were burnt out. The 24-hour notice at times attracted instances of anti-social behaviour such as vandalism and arson. 55. Subsection (3) revokes section 3(5) of the Refuse Disposal (Amenity) Act It enables local authorities to immediately remove any vehicle in such a condition if they think it has been abandoned. Section 12 Disposal of abandoned vehicles 56. Section 12 relates to the steps a local authority must take before they can dispose of an abandoned vehicle. 57. Under section 4 of the Refuse Disposal (Amenity) Act 1978, prior to section 12 of this Act coming into force, a vehicle could only be destroyed immediately after removal where it had been removed under section 3(5) (being that it was in such a condition that it ought to be destroyed) and did not display a current licence. Where a current licence was displayed, this had to expire before destruction could take place. In other cases the local authority had to take steps to ascertain who the owner was and, if found, to serve a notice telling him of the vehicle s removal. If no owner could be found, or the owner failed to respond to the notice within 7 days, the vehicle could then be disposed of unless it displayed a current licence. Again, if a licence was displayed, the authority had to wait for its expiry before destruction. 58. Waiting for the expiration of the licence led to further storage costs being incurred by local authorities where the vehicle was only fit for destruction or the owner either could not be traced or had chosen not to collect it. 59. Section 12 amends section 4 of the Refuse Disposal (Amenity) Act 1978 by removing the requirement to wait for the expiration of a valid licence. This has the effect of allowing any vehicle that is only fit for destruction to be destroyed immediately. In other cases, if the 7

8 owner either cannot be traced or fails to respond to a notice the vehicle can then be disposed of. 60. This section also amends section 4 by allowing immediate disposal where neither a registration mark (plate) is shown or current licence displayed. Without that information, it is considered unreasonable to expect the authority to trace the owner (either of these would provide a way to check the DVLA register or make enquiries in other countries). This section allows these vehicles to be disposed of immediately. Section 13 Guidance 61. This section obliges authorities to have regard to guidance given by the appropriate person when exercising their functions in relation to the removal and disposal of vehicles. Section 14 Abandoned vehicles: supplementary 62. This section provides a definition of "appropriate person" for the purposes of the powers conferred by sections 10 to 13. The effect is that the powers are conferred on the Secretary of State in relation to England, and the National Assembly for Wales in relation to Wales. 63. Subsection (2) amends section 10(5) of the Refuse Disposal (Amenity) Act 1978 so that any orders or regulations made by the National Assembly for Wales under new sections 2A and 2C are to be made by statutory instrument by negative resolution. Vehicles illegally parked etc Section 15 Notices of Removal; section 16 Disposal; section 17 Guidance 64. These sections make similar changes to the Road Traffic Regulation Act 1984 ( the 1984 Act ) to those to the Refuse Disposal (Amenity) Act 1978 described above. 65. Section 15 amends section 99 of the 1984 Act. It inserts the words other than a road after the word land in subsection (3). This has the effect of removing the requirement to serve the occupier of land with a notice where that land is a road. It also removes the requirement to attach a notice on a vehicle that is considered in such a condition that it ought to be destroyed by omitting subsection (4). This mirrors the amendments made by section 11 to the Refuse Disposal (Amenity) Act 1978 for the same reasons. The 1984 Act has similar provisions for dealing with abandoned vehicles as are contained in the Refuse Disposal (Amenity) Act 1978 but there is only a power for local authorities to act, not a duty as under section 3 of the 1978 Act. 66. Section 16 amends section 101 of the 1984 Act. It makes various amendments to subsection (3) that mirror the amendments made by section 12. It allows for the removal of vehicles that do not display either a valid licence or a registration mark (plate) and also removes the requirement to wait for the expiration of a valid licence before the vehicle can be disposed of. 67. Section 17 inserts into section 103 of the 1984 Act the requirement for local authorities exercising functions under sections 99 to 103 of the Act to have regard to any guidance issued by the Secretary of State or the National Assembly for Wales as the case may be. PART 3: LITTER AND REFUSE 8

9 Offence of dropping litter Section 18 Extension of litter offence to all open places 68. Section 87 of the Environmental Protection Act 1990 ( the 1990 Act ) makes it an offence to drop litter in a place in the open air to which the public are entitled or permitted to have access without payment, including any covered place open to the air on at least one side and to which the public has access. It also includes relevant land owned by local authorities, statutory undertakers, designated educational institutions and Crown land. 69. Section 18 extends the scope of that offence so that it becomes an offence to drop litter anywhere in the open air in the area of a principal litter authority, regardless of ownership. However, under this section it is not an offence to drop litter in a covered place open to the air on at least one side to which the public does not have access. 70. The offence extends to dropping litter into bodies of water, such as rivers or lakes. The area of a local authority which is on the coast extends down to the low-water mark under section 72 of the Local Government Act Therefore it becomes an offence to drop litter anywhere above the low water mark (and thus an offence to drop litter on beaches). 71. It does not extend the duty on principal litter authorities (and others) to keep their relevant land clear of litter and refuse as set out in section 89 of the 1990 Act. 72. The exceptions to the offence that are set out in section 87 of the 1990 Act are amended so that no offence is committed if the littering was authorised by law or done by or with the consent of the owner, occupier, or other authority or person having control of the area (subsection (4A)). Consent may only be given in relation to a watercourse, lake or pond if the same person owns all the surrounding land (subsection (4B)). Section 19 Litter offence: fixed penalty notices 73. Section 19 amends section 88 of the 1990 Act, under which an authorised officer of a litter authority may give a person who he has reason to believe has committed an offence under section 87 a notice offering that person the opportunity to discharge any liability to conviction for that offence by payment of a fixed penalty. 74. Subsection (2) amends section 88 to enable a principal litter authority to specify the amount of fixed penalty to be applied in its area; where the authority sets no such amount the fixed penalty shall be 75. Powers set out in section 97A (introduced by section 24) of the 1990 Act enable regulations to be made by the Secretary of State or the National Assembly for Wales to set a minimum and maximum range within which the fixed penalty amount can be set. The litter authority to which a fixed penalty is payable may provide for treating it as having been paid if a lesser amount is paid before the end of such (shorter) period as it may specify. 75. Subsection (3) inserts new section 88 (8A)-(8C) that provides that where an authorised officer of a litter authority proposes to give a person a fixed penalty notice, he may require that person to give him his name and address, and it is an offence for that person to fail to do so or to give false or inaccurate information. 76. Subsection (4) classifies all parish and community councils as litter authorities. This has the effect of enabling parish and community councils to authorise officers to serve fixed penalty notices for the litter offence under section 88 of the 1990 Act. Under subsection (6) 9

10 the Secretary of State or the National Assembly for Wales may make regulations prescribing conditions that must be met by an individual before he can be authorised by a parish and community council to issue fixed penalty notices. This could, for example, relate to certain training standards or competencies. 77. In subsection (5) the description of an authorised officer is extended under a revised section 88(10) to allow litter authorities to authorise individuals other than their own employees to issue fixed penalty notices on their behalf. Local authority notices Section 20 Litter clearing notices 78. Previously principal litter authorities could apply the duty in section 89 of the 1990 Act for land to be kept clear of litter and refuse to other public places (such as shopping centres) by designating litter control areas under section 90 of the 1990 Act. Any occupier of relevant land within that area was then required to keep their land free from litter and refuse. However, litter control areas were very infrequently used by local authorities which considered the process for designation to be overly complicated. 79. Section 20 repeals the power to designate litter control areas (and Schedule 5 repeals provisions of the 1990 Act which are consequential on that power). As an alternative, the section inserts a new section 92A into the 1990 Act empowering principal litter authorities to serve litter clearing notices on particular occupiers where they are of the view that defacement caused by the litter or refuse is detrimental to the amenity of the area. 80. Under this measure, a litter clearing notice may be served on an occupier of any land in the open air except for land specified in section 92A(11). If the land is unoccupied, the notice may be served on the owner. Notices may require the land to be cleared of litter and refuse within a certain time, and may specify steps to be taken to prevent future defacement. Section 92A(7) allows the appropriate person (as described in section 98(1A) introduced by section 26) to issue guidance to local authorities on any aspect of their use of litter clearing notices, for example, in relation to standards that may be specified for the clearance of the litter and refuse. Section 92A(8) also gives the appropriate person an order-making power to specify the form and content of litter clearing notices. 81. Section 92B gives a person on whom a litter clearing notice is served the right of appeal to a magistrates court and sets out the grounds on which such an appeal may be made. 82. Section 92C makes it an offence to fail without reasonable excuse to comply with a litter clearing notice. Where a person fails to meet the requirements of a notice, a principal litter authority may itself enter the land to remove the litter and refuse. An authority may then impose a reasonable charge for this on the person who failed to comply with the notice. Section 21 Street litter control notices 83. Under sections 93 and 94 of the 1990 Act, certain principal litter authorities can prevent accumulations of litter and refuse in and around any street or open land adjacent to any street by issuing a street litter control notice. This imposes requirements on occupiers of premises to deal with litter and refuse. 84. Section 21 amends sections 93 and 94 of the 1990 Act. Subsection (1) extends the application of street litter control notices to cover also vehicles, stalls and other moveable 10

11 structures used for street vending, so that mobile vendors can also be required to take steps to minimise and clear up litter and refuse on any street or open land adjacent to it that originates from their commercial or retail activities. 85. Prior to section 21 coming into force, a person only committed an offence in relation to a street litter control notice if, on an application by the authority, he failed to comply with an order of the magistrates court requiring compliance with the notice. This required the authority to first seek a court order for compliance where a street litter control notice is not complied with, which made it difficult and costly for the authority to enforce. 86. Subsections (2) and (3) amend this to make it an immediate offence not to comply with the requirements of a street litter control notice, thus dispensing with the requirement on the authority first to seek an order from the magistrates court ordering compliance. Section 22 Failure to comply with notice: fixed penalty notices 87. Section 22 inserts section 94A into the 1990 Act to enable an authorised officer of the authority to issue a notice to a person who he has reason to believe has not complied with a litter clearing notice or a street litter control notice, offering that person an opportunity to discharge any liability to conviction for an offence by payment of a fixed penalty. 88. Section 94A(4) enables a principal litter authority to specify the amount of fixed penalty applicable in its area for the offences under sections 92C and 94; the fixed penalty (for either offence) is set at 100 where no amount is set by a local authority. Section 94A(5) permits the principal litter authority to make provision for treating the fixed penalty as paid if a lesser sum is received by it within such (shorter) period as it may specify. 89. The use of receipts from these fixed penalty notices is dealt with under section 96. Free distribution of printed matter Section 23 Controls on free distribution of printed matter 90. Section 23 inserts section 94B and Schedule 3A into the 1990 Act. This gives principal litter authorities the power to control the distribution of free literature to prevent such material from becoming litter in the local environment. 91. Prior to section 23 coming into force, local authorities in London and the Council of the City of Newcastle upon Tyne had the power to designate areas in which the distribution of free literature can only occur with the consent of the authority (under section 4 of the London Local Authorities Act 1994 and section 22 of the City of Newcastle upon Tyne Act 2000). Distribution in these areas without consent was an offence punishable by a fine and the local authority may also seize any such literature. 92. Section 23 repeals these powers and replaces them with similar legislation on a national basis, enabling all principal litter authorities to place restrictions on the distribution of free literature, through the designation of areas where this control will apply, and the establishment of a consent system. 93. Paragraph 1 of Schedule 3A makes it an offence to distribute, commission or pay for the distribution of free literature without consent in a designated area. Material distributed for charitable, religious and political purposes is exempted from the offence. The offence does not extend to putting literature inside a building or letter-box, nor does it apply where the distribution takes place entirely within a public service vehicle, such as a bus or coach. 11

12 94. Paragraph 2 enables an authority to make an order to designate areas where this offence will apply. It sets out the procedure and requirements for achieving designation, including public notification, consideration of objections and timing of designation. 95. Paragraph 3 enables an authority to issue consents for the distribution of free literature in a designated area. This includes provisions allowing an authority to impose conditions on the consent to prevent defacement and ensure enforcement, to refuse consent in certain circumstances, and to revoke consent. The consent may also specify that others can also distribute the material in accordance with that consent, for example, a distributor, an individual or the employees of the applicant. 96. Paragraph 4 enables an authority to charge a fee, within the confines of overall cost recovery for this Schedule. Paragraph 5 provides for appeal to a magistrates court. 97. Paragraph 6 enables an authorised officer of an authority to seize the material when an offence is committed. A person claiming ownership of the literature may apply to the magistrates court requesting the return of this material. 98. Paragraph 7 enables an authority, or any person authorised by an authority, to issue a fixed penalty notice for this offence, offering the offender an opportunity to discharge any liability to the offence. 99. This paragraph enables an authority to specify the amount of fixed penalty and set provisions for variable payment rates, for example, for a lesser amount if the fine is paid within a specified time period. The fixed penalty is set at 75 where no amount is set by an authority Paragraph 7 also provides an authorised officer of an authority with the power to require the name and address of a person to whom he intends giving a penalty notice, and makes it an offence to give inaccurate information. 12

13 General These notes refer to the Clean Neighbourhoods and Environment Act 2005 (c.16) Section 24 Fixed penalty notices: common provision 101. Section 24 introduces a new section 97A into the 1990 Act, applying general provisions relating to the fixed penalty notices associated with the offence of dropping litter, litter clearing notices, street litter control notices and the distribution of printed matter. It enables the appropriate person (the Secretary of State in relation to England and the National Assembly for Wales in relation to Wales) to make regulations which may set a range within which a locally determined fixed penalty amount must fall. Such regulations may also restrict the extent to which and the circumstances in which an authority may permit the payment of lesser amounts. The section also enables the appropriate person, by order, to change the amount of the fixed penalty where no local rate is set by the relevant authority. Section 25 Exclusion of liability 102. Section 25 further amends the 1990 Act, by introducing new section 97B. That section protects a principal litter authority and any other person described in section 97B(2) against liability to an occupier or owner of land for damages or otherwise arising out of the exercise of certain powers relating to entry on to land (as specified in the section) in the context of either a litter clearing notice or a litter abatement notice. The circumstances in which this exclusion does not apply are also set out (bad faith, lack of due care etc). Section 26 Appropriate person 103. Section 26 introduces into section 98 of the 1990 Act a definition of the appropriate person for the purposes of Part 4 as the Secretary of State in relation to England, and the National Assembly for Wales in relation to Wales. Section 27 Meaning of litter 104. Section 27 clarifies the meaning of litter for the purposes of Part 4 of the 1990 Act, by specifically including cigarettes, cigars and like products and discarded chewing gum (including bubble gum). Although these were already considered to fall within the definition of litter, the intention of this section is to provide clarity for practitioners. PART 4: GRAFFITI AND OTHER DEFACEMENT Graffiti and fly-posting Section 28 Graffiti and fly-posting offences: fixed penalty notices 105. Section 43 of the Anti-social Behaviour Act 2003 allows authorised officers to issue fixed penalty notices for the offences of graffiti and fly-posting, and previously sets the amount payable for a graffiti or fly-posting fixed penalty notice at Section 28 of this Act enables a local authority to vary the fixed penalty amount for a graffiti or fly-posting offence in its area. Where no amount is specified by a local authority, this section also raises the base amount from 50 to 75. This amount may be changed by an order made by the appropriate person. In either case, the local authority may provide for a lesser amount to be paid if early payment is made within a specified period. In addition, the appropriate person (the Secretary of State in relation to England and the National Assembly for Wales in relation to Wales) may make regulations relating to the fixed penalty amount, for example to specify a range within which the amount should fall. 13

14 107. Parish and community councils (by way of their qualifying as litter authorities under section 88(9)(f) of the 1990 Act, and thus as local authorities under these provisions) are also given the power to issue fixed penalty notices for the graffiti and fly-posting offences. The effect of subsections (2) and (3) of section 28 (relating to the definition of relevant local authority ) is to require them to adopt the amount specified by the local authority. Section 29 Fixed penalty notices: powers to require name and address 108. Section 29 further amends the Anti-social Behaviour Act 2003 to give an authorised officer of a local authority the power to require the name and address of a person to whom he proposes to give a fixed penalty notice, and makes it an offence for that person either to fail to give that information or to give false or inaccurate information. Section 30 Fixed penalty notices: authorised officers 109. Section 30 extends the definition of an authorised officer to allow local authorities to authorise individuals other than their own employees for the purpose of giving notices for graffiti and fly-posting offences Subsection (2) enables the appropriate person (the Secretary of State in relation to England and the National Assembly for Wales in relation to Wales) to make regulations prescribing conditions that a person must satisfy before a parish or community council may authorise that person to issue notices on their behalf for graffiti and fly-posting offences. Section 31 Extension of graffiti removal regime to fly-posting 111. Sections 48 to 52 of the Anti-social Behaviour Act 2003 enable local authorities to issue notices requiring the removal of graffiti within 28 days from certain surfaces to statutory undertakers (such as railways and port authorities) or a person responsible for street furniture. If the graffiti removal notice is not complied with, the local authority can remove the graffiti themselves and reclaim their costs Section 31 amends the powers to issue graffiti removal notices (in respect of the defacement of a relevant surface to a degree that is detrimental to the amenity of an area or that is offensive) under sections of the Anti-social Behaviour Act 2003 by extending their application to cover illegal advertising (fly posting). This enables a removal notice to be issued requiring the removal of any poster or flyer displayed on a relevant surface in contravention of regulations made under section 220 of the Town and Country Planning Act Paragraph 17 of Schedule 4 makes consequential amendments to the Anti-social Behaviour Act 2003 so as to re-name these notices as defacement removal notices. Section 32 Sale of aerosol paints to children 114. Section 54 of the Anti-social Behaviour Act 2003 makes it an offence to sell aerosol paints to persons aged under 16. Section 32 introduces a new section 54A concerning the enforcement of section Section 54A(1) requires a local weights and measures authority to consider, at least once a year, the extent to which it is appropriate to have a programme of enforcement action in relation to section 54 and, to that extent, to carry out such a programme. 14

15 116. Section 54A(2) sets out what measures a programme of enforcement action may contain. Guidance will set out what "other measures" in section 54A(2)(c) may include. Advertisements Section 33 Unlawful display of advertisements: defences 117. It is an offence under section 224 of the Town and Country Planning Act 1990 to display an advertisement in contravention of regulations under section 220 of that Act. The offence is capable of being committed by a person who owns land where the advertisement is displayed, or whose business or concerns are advertised However, prior to section 33 of this Act coming into force, there was a defence for such a person, namely where he proves that the advertisement was displayed without his knowledge or consent. That presented a difficulty for local authorities, which effectively had to prove that the person both knew of and consented to the display of the advertisement, making it very hard to secure a conviction The Act amends the statutory defence. It removes the requirement for a local authority to prove that a person consented to the display of an advertisement in contravention of regulations The amended defence is that the advertisement was either displayed without the knowledge of the person; or that he either took all reasonable steps to prevent the display, or to secure its removal after the advertisement had been displayed. Section 34 Removal of placards and posters 121. Section 225 of the Town and Country Planning Act 1990 enables a local authority to serve a notice on a person who has illegally displayed placards and posters, and to remove or obliterate these posters or placards where that person has failed to do so himself within the time specified in that notice Where a person has failed to comply with such a notice, section 34 enables a local authority to recover the costs they incurred in removing or obliterating the illegally-displayed posters or placards In the first instance, the costs of removal are recoverable from the person identified in the poster or placard as having displayed it or having caused it to be displayed. However, if he cannot be identified, subsection (4) permits the local authority to recover costs from an identifiable person whose goods, services or concerns are publicised in the poster or placard (i.e. the beneficiary of the advertisement). Costs can only be recovered if he has failed to comply with a notice requiring him to remove the placard or poster within a specified time Subsection (5) enables any person suffering damage to land or chattels caused by a local authority who is exercising these powers to receive compensation for that damage - other than a person who displayed, or caused the display, of the offending poster or placard Subsection (6) amends the 1990 Act to enable a local authority to enter both occupied and unoccupied land in order to remove unlawful posters or placards. PART 5: WASTE CHAPTER 1: TRANSPORT OF WASTE 15

16 Section 35 Unregistered transportation: defence of acting under employer s instructions 126. Under section 1 of the Control of Pollution (Amendment) Act 1989, it is an offence for anyone who is not a registered carrier of controlled waste to transport such waste within Great Britain in the course of any business of his or otherwise with a view to profit. Controlled waste is defined as household, industrial and commercial waste Section 35(1) amends section 1 of the Control of Pollution (Amendment) Act 1989 so as to remove the defence (at section 1(4)(c)) of acting under one s employer s instructions. Section 36 Registration requirements and conditions 128. Section 2 of the Control of Pollution (Amendment) Act 1989 sets out provisions as to the registration of waste carriers. Section 36 amends the provisions in section 2 relating to certificates of registration for carriers of controlled waste (in relation to which provision can be made in regulations under that section). In particular, it removes the requirement that a certificate of registration, and copies of such a certificate, must be provided free of charge This section also provides (by way of new section 2(4A) and (4B) of the 1989 Act) that regulations under this section may include provision for the registration of carriers of controlled waste to be subject to conditions relating to the vehicles they use, as well as for the possible revocation of a registration in the event of breach of such a condition. In support of this, the regulations may provide for inspections of such vehicles and charges for such inspections. Section 37 Enforcement powers 130. Section 37 substitutes section 5 of the Control of Pollution (Amendment) Act 1989 with new sections 5 and 5A. The principal effect is to enable a constable or an authorised officer of a regulation authority (i.e. the Environment Agency or a waste collection authority) to stop, search and seize a vehicle that he reasonably believes is being used in the commission of an offence under section 1 of that Act (transporting controlled waste without being registered) Section 5 sets out the powers of an authorised officer or a constable in relation to such a vehicle and its contents. Only a constable in uniform may stop a vehicle on the road. A vehicle or its contents which are seized by a constable in the presence of an authorised officer of a regulation authority are seized on behalf of that authority; where the constable is acting alone then the vehicle or contents seized are seized on behalf of the waste collection authority in whose area the seizure takes place Section 5(7) re-enacts the offence under the previous section 5 of failing to comply with a requirement to produce authority for transporting controlled waste; it also creates new offences of failing to assist or otherwise obstructing an authorised officer or constable Section 5(9) gives the authorised officer or constable a power to require any occupant of the vehicle to give his name and address, or that of the registered owner of the vehicle, or any other information he may reasonably request. By section 5(10) it is an offence to fail to give such information or to give information which is knowingly or recklessly false or misleading, punishable by a fine not exceeding level 5 on the standard scale (currently 5,000). 16

17 134. Section 5A empowers the appropriate person (the Secretary of State in relation to England and the National Assembly for Wales in relation to Wales) to make regulations specifying how a regulation authority must deal with vehicles or their contents seized under section 5, and to issue guidance to a regulation authority in relation to its performance of its functions under such regulations. Section 38 Failure to produce authority: fixed penalty notices 135. Section 38 inserts sections 5B and 5C into the Control of Pollution (Amendment) Act Under section 5B, where it appears to an authorised officer of a regulation authority that a person has committed an offence under section 5(7)(a) (failure to produce authority for transporting controlled waste) he may issue that person with a notice, offering him an opportunity to discharge by payment of a fixed penalty any liability to conviction for the offence. By section 5B(9) the fixed penalty is set at 300, though a different amount may be substituted by an order made by the appropriate person under section 5B(10). By section 5B(11) a regulation authority may make provision for treating a fixed penalty as having been paid if a lesser amount is paid within a shorter specified period, and by section 5B(12) the extent and circumstances for doing so may be subject to restrictions in regulations made by the appropriate person Section 5C allows a waste collection authority to retain the receipts arising from fixed penalty notices issued pursuant to section 5B, and specifies the functions for which the receipts may be used. Section 5C(9) makes similar provision to that made by section 8 (subsection (8)) as described in paragraph 44 above. Section 39 Interpretation 137. Section 39 inserts definitions of appropriate person and authorised officer in section 9 of the Control of Pollution (Amendment) Act The former is defined as the Secretary of State in relation to England, and the National Assembly for Wales in relation to Wales. CHAPTER 2: DEPOSIT AND DISPOSAL OF WASTE Offence of unlawful deposit of waste etc Section 40 Defence of acting under employer s instructions 138. Section 40 amends section 33 of the Environmental Protection Act 1990 (under which it is an offence to make an unauthorised or harmful deposit etc. of waste) so as to remove the defence (at section 33(7)(b)) of acting under one s employer s instructions. 17